How America Wants Courts to Rule on Affirmative Action, Gay Marriage & NSA

Americans are weighing in on how they want the Supreme Court to rule on upcoming cases dealing with affirmative action and gay marriage, and eventually some court to decide the new NSA spying suits. Their opinions — against, for, and mixed, respectively — are, of course, irrelevant to what the courts do.

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Over the course of the next several weeks, the Supreme Court is expected to weigh in on several highly controversial issues including gay marriage and affirmative action. Eventually some court, perhaps that one, will decide on the ACLU's lawsuit against the NSA for the agency's collection of phone records. In each case, recent polls show how Americans think the courts should decide — which is, by design, completely irrelevant to how the justices will make their decisions.

Affirmative action

The case: Before the Court goes into recess at the end of June, it is expected to rule on Fisher v. University of Texas, one of two affirmative action cases currently on its docket.

The case revolves around Abigail Fisher, a white student who was denied admission to the university after graduating from high school. Fisher's legal team has argued that other non-white students with equivalent qualifications were granted admission. The school has countered that, even if Fisher had been a person of color, her qualifications still wouldn't have been enough for her to earn a spot.

In practical terms, the case centers on whether or not the school's consideration of race should be an allowable factor in determining who it admits.

The polls: Two polls released over the last 24 hours — from ABC News/Washington Post and NBC News/Wall Street Journal — looked at Americans' consideration of affirmative action policies. Both had similar conclusions: antipathy toward such programs is high. But the two polls differed in significant ways.

The ABC/Post poll found opposition much higher than the NBC poll, with 76 percent expressing some level of opposition to the program. Specifically, the pollsters asked, "Do you support or oppose allowing universities to consider applicants' race as a factor in deciding which students to admit?"

That number, it found, was lower than in the past.

In a Gallup/CNN/USA Today survey in 2001, for instance, 87 percent said colleges should not be allowed to consider race as a factor in student admission decisions, vs. 76 percent in this poll.

NBC/WSJ's poll results found the opposite. It determined that opposition was higher than at any point since the 1990s — but with much lower levels of opposition. It offered two statements, asking respondents to choose between them.

  • Affirmative action programs are still needed to counteract the effects of discrimination against minorities, and are a good idea as long as there are no rigid quotas.
  • Affirmative action programs have gone too far in favoring minorities, and should be ended because they unfairly discriminate against whites.

What's more, the two polls differed in how race affected responses. Looking at support or opposition to affirmative action among racial groups, ABC's found much broader, universal opposition than did NBC's poll.

It's not clear what accounts for this discrepancy. It seems safe to assume that people generally oppose affirmative action programs, but not how much or how that differs based on race.

Gay marriage

The case: The Supreme Court is expected to soon return opinions on two cases related to gay marriage: Windsor v. U.S., which considers the constitutionality of the Defense of Marriage Act, and Hollingsworth v. Perry, which looks at California's anti-gay marriage Proposition 8.

There is a range of possible actions in the two cases. The Court could determine that laws barring gay marriage are unconstitutional across the board; it could simply reject or uphold DOMA and Prop 8. In other words, the Court could look at making a determination on the civil rights aspect of gay marriage — or it could not.

The polls: The same ABC poll as that that asked about affirmative action finds that support for extending full marriage rights to same-sex couples continues to grow.

ABC notes:

Results on legalizing gay marriage are consistent with previous recent surveys, with far less support among conservatives, Republicans and older adults than among others. Still, federal benefits for legally married gay couples win more support in these groups, as well as overall. For example, while just 33 percent of Republicans support gay marriage, 42 percent support equal benefits for legally married gays. The shift is similar among conservatives.

The Los Angeles Times reported earlier this week on attitudes in that state on gay marriage — which in 2008 resulted in the anti-gay marriage Prop 8. Now, 58 percent of the state supports its legalization.

Government surveillance

The case: There isn't yet a case before the Supreme Court considering whether or not the National Security Agency should be allowed to collect information on American citizens. There is a just-filed federal case brought by the ACLU that may make its way to the bench. And there is a secret ruling from a secret court that has determined that the NSA violated Americans' civil rights.

At some point, whether or not Congress acts to curtail the NSA's activity, the courts will likely be asked to make a ruling on what the agency has already done — in essence, whether or not what it did is legal.

The polls: Polling on the subject doesn't deal with legality, given the intricacies of such determinations. Instead, they focus on attitudes toward the behavior. Should we allow the government to infringe on our liberty in its efforts to stop terror attacks?

On Monday, Pew Research found that people generally answered that question, "yes." That attitude hasn't changed much over time.

A new CBS News poll adds a little more complexity to that. It adds an interesting, if slightly misleading distinction: collecting phone records from "ordinary Americans" versus "Americans suspected of terrorist activity." Unsurprisingly, that latter group is considered fair game by a much larger group of poll respondents — although it draws a distinction that the NSA itself doesn't appear to make.

CBS also found that people are skeptical of claims that the NSA revelations harm national security.

A majority of Americans do not think the public revelation of the government's collection of phone records will compromise U.S. security. Sixty percent say it will not have an impact or it will strengthen the United States' ability to prevent future terrorist attacks, while 30 percent think the leaking of such information will weaken the country's ability to prevent future terrorist attacks.

None of these polls, as mentioned above, will or should have any effect on the judicial determinations in these cases. The judicial branch was designed to keep the legislative branch — that representing the will of the people — in check. Blogger Peter Daou succinctly raised why in his response to the Pew poll.

Of course, that's based on an NBC poll. ABC's results may be substantially different.

This article is from the archive of our partner The Wire.